Sworn depositions raise new questions in Planned Parenthood fetal tissue controversy

Newly obtained testimony from Planned Parenthood Federation of America (PPFA) officials has raised questions about the organization’s initial response to journalist David Daleiden’s undercover videos, and refocused attention on whether the nation’s largest abortion provider violated federal law regarding fetal tissue donations.

PPFA previously accused Daleiden of “heavily” editing his footage, which showed high-ranking officials discussing how they performed abortions in order to provide suitable fetal tissue to procurement companies like StemExpress. Daleiden argues, however, that sworn depositions from his civil case confirm what’s been seen as the more troubling aspects of his videos. Fox News has obtained footage of officials’ testimonies, in addition to a video Daleiden is releasing Tuesday in an attempt to discredit PPFA’s initial narrative.

Perhaps most controversial were Daleiden’s first undercover videos, which showed Drs. Deborah Nucatola and Mary Gatter – both senior management at PPFA – discussing how they perform abortions differently, or use a “less crunchy” technique, when a patient has elected to donate fetal tissue.

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Both doctors confirmed, in testimony obtained by Fox News, that they altered abortions but maintained that their “procedure” never changed. Nucatola, for example, was asked about her previous comment regarding crushing a fetus above and below its thorax to obtain intact tissue. “You would do that as a general matter?” one of Daleiden’s attorneys asked. “If I was aware that it was a donation case, yes.” She added that doing so was “not a change in the procedure.”

Gatter specifically testified that she would alter her “techniques.” While discussing her “evolution” in thinking on the issue, Gatter said: “By the time I was at PP [Planned Parenthood] Pasadena, many of us were moving in the direction of making this distinction between method and procedure, method and technique. And so I was very comfortable at that time that the difference in technique did not – doing different techniques: manual aspiration versus electronic aspiration – did not really affect the procedure or the method; so it was, therefore, permissible in terms of fetal tissue donation.”

Catherine Glenn Foster, an attorney who leads Americans United for Life, told Fox News that PPFA's distinction "doesn't matter legally. They are changing the procedure in order to sell ... the bodies of abortion victims."

Dr. Forrest Smith, an OBGYN who’s performed thousands of abortions, told Fox News that the “techniques” phrasing was just one of several “semantic sleight-of-hand trick[s]” PPFA has employed to shoehorn compliance with federal law — which prohibits the “alteration of the timing, method, or procedures used to terminate a pregnancy.” One of those “tricks,” he said, included PPFA’s decision to add “substantively” as a modifier to “altering” in its policies — phrasing that Cecile Richards, then-PPFA president, used in a 2015 letter to congressional leaders.

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Gatter’s and Nucatola’s testimonies, the video suggests, are important to understanding PPFA’s efforts to ensure affiliates comply with federal law. Under oath, Nucatola said she didn’t follow up with Gatter’s affiliate after PPFA reissued a 10-year-old guidance on the matter. Gatter, who served as medical director for the Los Angeles affiliate, famously joked on-camera that she wanted a Lamborghini while negotiating rates for fetal tissue.

PPFA did not specifically respond to Fox News’ question about the techniques versus procedure distinction. However, it emphatically denied any illegal activity while attempting to discredit Daleiden. “These claims are baseless, and coming from a group that’s been discredited time and time again,” Erica Sackin, the senior director of communications and culture at PPFA, told Fox News on Monday.

She added: “The truth is that the Center for Medical Progress broke the law to try and prevent Planned Parenthood from serving the patients who depend on us, and to shut down a provider of critical sexual and reproductive health care, including cancer screenings, STI testing, birth control and abortion care. They still face criminal charges, and were ordered to pay millions of dollars in damages as a result.”

The group has similarly pointed out that Nucatola said on camera that she isn’t interested in profiting off tissue and that Gatter also said, “We’re not in it for the money.” Daleiden has been successfully sued by PPFA – earning them $2 million in damages – and is currently undergoing a related criminal prosecution that he and his lawyers describe as a gross abuse of power.

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Daleiden asserts that his work is protected speech and that PPFA is using bogus talking points to hide what he says is clear evidence of malfeasance. In her letter to Congress, Richards argued that the key to federal compliance was ensuring changes to abortions don’t “impact the safety or well-being of the patient.” But according to Daleiden, PPFA’s medical alterations essentially turn the tissue itself into a commodity that can be marketed in the way federal law expressly prohibits.

The issue received renewed attention earlier this year, when media outlets reported on unsealed invoices showing a per diem fee for each product of conception (POC), a medical term for fetal body parts. Three invoices from 2012 showed a PP affiliate charging $24,940, along with more than 200 POC's to StemExpress, a tissue procurement company.

Planned Parenthood has defended itself by claiming that the charges are related to transportation and time spent by staff. The invoices don't mention either of those, however, nor do they contain the word "reimbursement." Instead, they assign a fee per body part. Specifically, the previously released contract between those organizations showed that the exchanges were based on "POC determined in the clinic to be usable” — a key distinction in Daleiden’s argument that PPFA is commodifying human remains.

"The federal law against selling aborted fetal organs and tissues in exchange for 'valuable consideration' was enacted to prevent monetary incentives to turn children in the womb into a commodity,” Daleiden previously told Fox News. “The law lays out the unmistakable difference between a researcher reimbursing a clinic for used up PPE, versus StemExpress paying solely for the number of 'usable' body parts it could collect and then sell from Planned Parenthood's abortions.”

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StemExpress, which promises "financial profits" in its brochure, handled all of the services for which Planned Parenthood might legitimately seek reimbursement under the law, Daleiden has also argued. He pointed to a House Select Panel report suggesting that Planned Parenthood was engaging in "double counting" costs like transportation. Instead, it indicated that the group's costs were "more properly assigned to the middleman procurer or the end user researcher."

In Daleiden’s latest video, officials offer sworn testimony confirming the contents of internal communications that he says suggest a financial interest in providing fetal tissue specimens.

For example, one email shows Tram Nguyen, an administrator at PPFA Gulf Coast, saying she wants to “move forward” with an offer from Daleiden’s fake company, Biomax, which included high-dollar compensation for fetal tissue ($700 for fetal liver and $1,600 for a liver, thymus pair).

Besides indicating a financial interest, Nguyen’s testimony, Daleiden alleges, also contradicts Planned Parenthood’s previous claim that it declined Biomax’s offer. Daleiden told Fox News he never heard back from PPFA, and the abortion provider declined to comment further when contacted by Fox News.

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Daleiden’s video also highlights an email in which Dr. Dorothy Fergerson, the chief medical officer for PPFA’s largest affiliate, purportedly says she’s switching procurement companies after hearing that StemExpress would collect samples more frequently than their current provider. In reference to StemExpress CEO Cate Dyer, the unnamed employee tells Fergerson: “Her business is starting to take off which is good for her and us as well.” When asked under oath about whether the switch was based on frequency of pick-up, Fergerson indicated it was.

“I think that that’s true that it seemed that StemExpress was working with more researchers perhaps than ABR [Advanced Bioscience Resources] was.” Fergerson also confirmed that her affiliate wouldn’t receive a reimbursement from StemExpress if its tissue sample wasn’t determined to be “usable.”

PPFA has denied "selling" fetal tissue and it's unclear how the group planned for revenue from those transfers. Daleiden's video shows ABR's founder, Linda Tracy, repeatedly being directed by her attorney not to answer questions regarding potential conversations about PPFA's revenue projections.

Daleiden's latest video came at a critical time when Planned Parenthood faced a potential investigation over its misuse of coronavirus relief funds. While the Department of Justice already opened a probe into its fetal tissue practices, it's unclear how it progressed since 2017 when it first made headlines. The DOJ did not respond to Fox News' request for comment.

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In a press release Tuesday, Daleiden called on the DOJ to “escalate the enforcement of laws against fetal trafficking the highest level of priority."

"The time has come for federal consequences for Planned Parenthood's lawlessness,” he said.